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IV Classes of Persons

Chapter Contents

4.1 Introduction 4.2 The Armed Forces and the Civilian Population 4.3 Lawful Combatants and Unprivileged Belligerents 4.4 Rights, Duties, and Liabilities of Combatants 4.5 Armed Forces of a State 4.6 Other Militia and Volunteer Corps 4.7 Leve en Masse 4.8 Rights, Duties, and Liabilities of Civilians 4.9 Military Medical and Religious Personnel 4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel 4.11 Authorized Staff of Voluntary Aid Societies 4.12 Staff of a Recognized Aid Society of a Neutral Country 4.13 Auxiliary Medical Personnel 4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property 4.15 Persons Authorized to Accompany the Armed Forces 4.16 Crews of Merchant Marine Vessels or Civil Aircraft 4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind

Enemy Lines 4.18 Private Persons Who Engage in Hostilities 4.19 Rights, Duties, and Liabilities of Unprivileged Belligerents 4.20 Children 4.21 Mercenaries 4.22 AP I Provisions on Civil Defense Personnel 4.23 Law Enforcement Officers 4.24 Journalists 4.25 Delegates or Representatives of the Protecting Powers 4.26 ICRC and Other Impartial Humanitarian Organizations 4.27 Determining the Status of Detainees in Cases of Doubt

4.1 INTRODUCTION

This Chapter addresses different classes of persons under the law of war. The law of war has created a framework of classes of persons to help confine the fighting between opposing military forces and thereby to help protect the civilian population from the effects of war.1

This Chapter addresses issues relating to various classes of people under the law of war including: (1) who is included in the various classes, such as combatant and civilian; (2) the rights, duties, and liabilities of the persons in each class; and (3) how certain factual categories of persons, such as journalists, police officers, or child soldiers, fall within various classes and are treated under the law of war. 1 Refer to 2.5.1 (Distinction as a Framework of Legal Classes).

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This Chapter briefly addresses specific rules that relate to the rights, duties, and liabilities of persons in the various classes to illustrate and provide an overview of that class. For more information about specific rules, practitioners should refer to the cross-referenced sections that addresses those specific rules.2

General Notes on Terminology for Persons in the Law of War. The terms in the 4.1.1law of war that describe different classes of people are often used in confusing and contradictory ways. Although striving to use terms consistently within DoD reduces confusion, understanding the substantive standards that apply to a person in the applicable circumstances is more important than using a particular label or a particular system of classification.

4.1.1.1 The Same Term Used With Different Meanings. Sometimes different meanings are given to the same term. For example, someone might be considered a combatant in the sense that the person may be made the object of attack, but the person would not necessarily be a combatant in the sense that the person is privileged to engage in hostilities.3

Similarly, one source might use the term noncombatant to mean all persons who are not combatants, including persons placed hors de combat and civilians.4 Alternatively, another source might use the term noncombatant to refer specifically to persons who are members of the armed forces, but who are not combatants.5 In the past, some commentators have used noncombatants of the armed forces to refer to all members of the armed forces serving in combat service support or sustainment roles.6 In contemporary parlance, however, the term noncombatant should generally be used to mean military medical and religious personnel,7 but also can include those combatants placed hors de combat.8

2 Refer to 1.2.3 (Use of Cross-References in This Manual). 3 Refer to 4.3.2 (Combatant Notes on Terminology). 4 See, e.g., L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 88 (2nd ed., 2000) (Nationals of the adverse party are normally classified as combatants and non-combatants, with the latter including some members of the armed forces chaplains, medical personnel and those hors de combat.); LIEBER CODE art. 19 (Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences.). 5 See, e.g., HAGUE IV REG. art. 3 (The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have the right to be treated as prisoners of war.). 6 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 56 (The distinction between combatants and noncombatants within the armed forces must be taken to correspond to the distinction between fighting troops and troops in service units. The fighting troops of an army carry out the actual military operations, whereas the service troops minister to the needs of the former and supply their various requirements. The Hague Regulations do not define the elements in the two classes, but combatants would include infantry, cavalry, armored troops, and the like, whose function it is to engage with the enemy; as well as artillery, engineers, signals, and others, whose duty it is to support such action. Noncombatants would include personnel of the various services comprising (inter alia) medical, chaplains, veterinary, graves, pay, postal, labor, supply, transport, ordnance, provost, legal, and military-government units.); GWS COMMENTARY 223 footnote 4 (In correct terminology, however, armed forces include combatants (i.e. soldiers bearing arms) and non-combatants (who comprise not only medical personnel but also various other army services not called upon to carry arms).). 7 Refer to 4.9 (Military Medical and Religious Personnel). 8 Refer to 5.10 (Persons Placed Hors de Combat).

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4.1.1.2 Different Terms Used to Describe the Same Concept. Different legal sources may use different terms to refer to the same class of people under the law of war. For example, one source might use belligerent, whereas another source might use combatant to refer to the same class of people under the law of war.9

Classes and Categories Are Only the Starting Point for Legal Analysis. When 4.1.2analyzing a persons rights, duties, and liabilities under the law of war, it is important to analyze the specific question in light of the applicable facts. Determining what class a person falls into, such as combatant, civilian, or unprivileged belligerent, may be only the first step in a legal analysis. For example, whether a person may be the object of attack, may be detained, is entitled to POW status, or may be punished for their actions are all different questions. Although these questions are often related to one another and associated with the general classes of combatant and civilian, each question requires its own specific analysis. This specific analysis should be done in each case, applying the legal rules to the facts, rather than deriving an answer based on a conclusory labeling of a person as, for example, an enemy combatant.10 Indeed, some persons might, for some purposes, be treated like combatants, but for other purposes be treated like civilians.11

4.2 THE ARMED FORCES AND THE CIVILIAN POPULATION

The law of war has recognized that the population of an enemy State is generally divided into two classes: the armed forces and the civilian population, also sometimes called, respectively, combatants and civilians. This division results from the principle of distinction.12

Development of the Distinction Between the Armed Forces and the Civilian 4.2.1Population. A citizen or national of a State that is a party to a conflict, as one of the constituents of a State that is engaged in hostilities, may be subjected to the hardships of war by an enemy State.13 However, because the ordinary members of the civilian population make no resistance, it has long been recognized that there is no right to make them the object of attack.14 Thus, 9 Refer to 4.3.2 (Combatant Notes on Terminology). 10 Refer to 4.18.1 (Private Persons Who Engage in Hostilities Notes on Terminology). 11 Refer to 4.2.3 (Mixed Cases). 12 Refer to 2.5 (Distinction). 13 See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 772-73 (1950) (The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.); LIEBER CODE art. 21 (The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.). 14 See LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 204 (57) (Those private subjects of the belligerents who do not directly or indirectly belong to the armed forces do not take part in it; they do not attack and defend; and no attack ought therefore to be made upon them.); G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 15-16 (20.3) (1908) (Feeble old men, women, and children, and sick persons, come under the general description of enemies, and we have certain rights over them as members of the community with which we are at war; but, as they are enemies who make no resistance, we have no right to maltreat their persons, or to use any violence toward them, much less to take their lives.); LIEBER CODE arts. 22, 23, 25 (explaining that protection of the unarmed citizen,

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States have departed from ancient and medieval practices of war between entire peoples, and instead, as much as possible, have treated war as a contention between the professional military forces of warring States.15 This separation of the armed forces and the civilian population has greatly mitigated the evils of war.16

No Person May Claim the Distinct Rights Afforded to Both Combatants and 4.2.2Civilians at the Same Time. The classes of combatants and civilians have distinct rights, duties, and liabilities; no person may claim the distinct rights afforded both classes at the same time.17 For example, a person may not claim the combatants right to attack enemy forces while also claiming the civilians right not to be made the object of attack.18

Mixed Cases. Certain classes of persons do not fit neatly within the dichotomy of 4.2.3the armed forces and the civilian population, i.e., combatants and civilians. Each of these the inoffensive individual, or the inoffensive citizen of the hostile country is the rule) (emphasis added); VATTEL, THE LAW OF NATIONS 282 (3.8.145) (Women, children, feeble old men, and the sick these are enemies who make no resistance, and consequently the belligerent has no right to maltreat or otherwise offer violence to them, much less to put them to death.). 15 See, e.g., LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 204 (57) (During antiquity, and the greater part of the Middle Ages, war was a contention between the whole populations of the belligerent States. In time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminating practice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or indirectly belong to their armed forces, and, with certain exceptions, their private property, are protected by International Law.); LIEBER CODE art. 22 (Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.). 16 See SPAIGHT, WAR RIGHTS ON LAND 37 (The separation of armies and peaceful inhabitants into two distinct classes is perhaps the greatest triumph of International Law. Its effect in mitigating the evils of war has been incalculable.); G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 20-22 (20.3) (1908) (But afterwards in Italy, and more particularly during the lawless confusion of the feudal ages, hostilities were carried on by all classes of persons, and everyone capable of being a soldier was regarded as such, and all the rights of war attached to his person. But as wars are now carried on by regular troops, or, at least, by forces regularly organised, the peasants, merchants, manufacturers, agriculturists, and, generally, all public and private persons, who are engaged in the ordinary pursuits of life, and take no part in military operations, have nothing to fear from the sword of the enemy. So long as they refrain from all hostilities, pay the military contributions which may be imposed on them and quietly submit to the authority of the belligerent who may happen to be in the military possession of their country, they are allowed to continue in the enjoyment of their property, and in the pursuit of their ordinary avocations. This system has greatly mitigated the evils of war, .). 17 See, e.g., 1956 FM 27-10 (Change No. 1 1976) 60 (dividing into prisoners of war and the civilian population, and noting that [p]ersons in each of the foregoing categories have distinct rights, duties, and disabilities.); 1940 RULES OF LAND WARFARE 8 (The enemy population is divided in war into two general classes, known as, the armed forces and the peaceful population. Both classes have distinct rights, duties, and disabilities, and no person can belong to both classes at one and the same time.); 1934 RULES OF LAND WARFARE 8 (same); 1914 RULES OF LAND WARFARE 29 (same). 18 See 1958 UK MANUAL 86 (It is one of the purposes of the law of war to ensure that an individual who belongs to one class or the other shall not be permitted to enjoy the privileges of both. Thus he must not be allowed to kill or wound members of the army of the opposing belligerent and subsequently, if captured, to claim that he is a peaceful citizen.).

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particular classes has some attributes of combatant status and some attributes of civilian status; in certain respects persons in these classes are treated like combatants, but in other respects they are treated like civilians. These classes may be classified into three groups: (1) certain personnel engaged in humanitarian duties; (2) certain authorized supporters of the armed forces; and (3) unprivileged belligerents.

4.2.3.1 Certain Personnel Engaged Humanitarian Duties. Certain categories of personnel have humanitarian duties that involve them in hostilities but also entitle them to special protections:

military medical and religious personnel;19

authorized staff of voluntary aid societies;20

staff of a recognized aid society of a neutral country;21

auxiliary medical personnel;22 and

personnel engaged in the protection of cultural property.23

4.2.3.2 Certain Authorized Supporters of the Armed Forces. Certain categories of persons are not members of the armed forces, but are nonetheless authorized to support the armed forces in the fighting:

persons authorized to accompany the armed forces, but who are not members thereof;24 and

members of the crews of merchant marine vessels or civil aircraft of a belligerent.25

4.2.3.3 Unprivileged Belligerents. Unprivileged belligerents generally are subject to the liabilities of both combatant and civilian status, and include:26

persons engaging in spying, sabotage, and similar acts behind enemy lines;27 and

private persons engaging in hostilities.28 19 Refer to 4.9 (Military Medical and Religious Personnel). 20 Refer to 4.11 (Authorized Staff of Voluntary Aid Societies). 21 Refer to 4.12 (Staff of a Recognized Aid Society of a Neutral Country). 22 Refer to 4.13 (Auxiliary Medical Personnel). 23 Refer to 4.14.1 (Personnel Engaged in the Protection of Cultural Property). 24 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces). 25 Refer to 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft). 26 Refer to 4.3.4 (Types of Unprivileged Belligerents). 27 Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

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4.3 LAWFUL COMBATANTS AND UNPRIVILEGED BELLIGERENTS

In addition to distinguishing between the armed forces and the civilian population, the law of war also distinguishes between privileged and unprivileged, or lawful and unlawful combatants. As the Supreme Court has explained:

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.29

Unlawful combatants or unprivileged belligerents are persons who, by engaging in hostilities, have incurred one or more of the corresponding liabilities of combatant status (e.g., being made the object of attack and subject to detention), but who are not entitled to any of the distinct privileges of combatant status (e.g., combatant immunity and POW status).30

Unprivileged Belligerents as a Category in Treaty Law. States have, in a few 4.3.1cases, explicitly recognized in treaties certain categories of unprivileged belligerents, such as spies and saboteurs.31 However, States have generally refrained from explicitly recognizing unprivileged belligerents as a class in treaties in the way that classes of lawful combatants have been defined.32

Law of war treaties have been understood to reflect restrictions on the conduct of hostilities by States,33 and States have been reluctant to conclude treaties to afford unprivileged enemy belligerents the distinct privileges of POW status or the full protections afforded civilians.34

28 Refer to 4.18 (Private Persons Who Engage in Hostilities). 29 Ex parte Quirin, 317 U.S. 1, 31 (1942). See also Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incident[s] of war.) (quoting Ex parte Quirin at 28, 30). 30 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents). 31 See, e.g., HAGUE IV REG. arts. 29-31 (defining the category of spy and regulating the treatment of captured spies); GC art. 5 (regulating the treatment of certain protected persons detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power). See also GC COMMENTARY 5 (It may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had been possible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often been used lightly, and applied to such trivial offences, that it was not advisable to leave the accused at the mercy of those detaining them.). 32 See, e.g., GWS art. 13; GWS-SEA art. 13; GPW art. 4. 33 Refer to 1.3.3.1 (Law of War as Prohibitive Law). 34 See, e.g., IIA FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 433 (ICRC representative explaining that [t]he present Conference was engaged in framing a Convention to protect members of armed forces and similar categories of persons, such as members of organized resistance movements, and another convention to

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Although seldom explicitly recognized as a class in law of war treaties, the category of unprivileged belligerent may be understood as an implicit consequence of creating the classes of lawful combatants and peaceful civilians.35 The concept of unprivileged belligerency, i.e., the set of legal liabilities associated with unprivileged belligerents, may be understood in opposition to the rights, duties, and liabilities of lawful combatants and peaceful civilians. Unprivileged belligerents include lawful combatants who have forfeited the privileges of combatant status by engaging in spying or sabotage, and private persons who have forfeited one or more of the protections of civilian status by engaging in hostilities.36

Combatant Notes on Terminology. 4.3.2

4.3.2.1 Combatant and Belligerent. Combatant and belligerent have sometimes been used interchangeably and, in this usage, they generally describe individuals who are not civilians.

Belligerent, however, has also sometimes used to describe States and to contrast such States with neutral or non-belligerent States.37 Belligerent has also been used to contrast armed groups that have belligerent rights with armed groups that lack such rights, such as insurgents.38

4.3.2.2 Lawful, Privileged, and Qualified. The distinction between lawful and unlawful combatants has sometimes been called a distinction between

protect civilians. Although the two Conventions might appear to cover all the categories concerned, irregular belligerents were not actually protected.); id. at 612 (Swiss representative taking the view that [i]n regard to the legal status of those who violated the laws of war, the [Civilians] Convention could not of course cover criminals or saboteurs.); id. at 621 (UK representative rejecting a draft which would mean that persons who were not entitled to protection under the Prisoners of War Convention would receive exactly the same protection by virtue of the Civilians Convention, so that all persons participating in hostilities would be protected, whether they conformed to the laws of war or not. The whole conception of the Civilians Convention was the protection of civilian victims of war and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of war to which they did not conform. Such persons should no doubt be accorded certain standards of treatment, but should not be entitled to all the benefits of the Convention.). 35 See, e.g., 10 U.S.C. 948a (The term unprivileged enemy belligerent means an individual (other than a privileged belligerent) who engages in certain conduct); Ex parte Quirin, 317 U.S. 1, 35 (1942) (Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear fixed and distinctive emblems.). 36 Refer to 4.3.4 (Types of Unprivileged Belligerents). 37 Refer to 15.1.2 (Classification of States as Belligerent, Neutral, or Non-Belligerent). 38 See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3448 (The concept of insurgency was traditionally used to describe a conflict that did not meet the rigid standards of customary international law for recognition of belligerency.); Anthony Eden, Secretary of State for Foreign Affairs, United Kingdom, Oral Answers to Questions, Dec. 8, 1937, HANSARD 330 HOUSE OF COMMONS DEBATES 357 (His Majestys Ambassador at Hendaye has been instructed to inform the Salamanca authorities that as belligerent rights have not been recognised to either party in the Spanish conflict. His Majestys Government are not prepared to admit their right to declare any such blockade.). Refer to 3.3.3 (State Recognition of Armed Groups as Belligerents).

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privileged and unprivileged belligerents, i.e., distinguishing between persons who are entitled to the privileges of combatant or belligerent status, and those who are not.39 This distinction has also sometimes been called a distinction between qualified and unqualified belligerents, i.e., distinguishing between persons who have met the qualifications to receive the privileges of combatant status and those who have not.40

4.3.2.3 Combatant Used Without Modification. Combatant and belligerent, when used without modification (such as lawful or unlawful, or privileged or unprivileged), have often referred implicitly to lawful or privileged combatants.41 However, in some cases, combatant or belligerent has been used to refer to all persons who engage in hostilities, without taking a position as to whether they are entitled to receive the privileges of combatant status.

4.3.2.4 General Usage of Combatant in This Manual. This manual generally uses combatant to refer implicitly to lawful or privileged combatants.

This manual generally uses the term unprivileged belligerent (instead of, e.g., unlawful combatant, unlawful belligerent, unprivileged combatant, etc.) to refer to persons who are subject to one or more of the liabilities of combatant status, but are not entitled to receive its distinct privileges.

Types of Lawful Combatants. Three classes of persons qualify as lawful or 4.3.3privileged combatants:

members of the armed forces of a State that is a party to a conflict, aside from certain categories of medical and religious personnel;42

under certain conditions, members of militia or volunteer corps that are not part of the armed forces of a State, but belong to a State;43 and

inhabitants of an area who participate in a kind of popular uprising to defend against foreign invaders, known as a leve en masse.44

39 See, e.g., 1958 UK MANUAL 96 (Should regular combatants fail to comply with these four conditions, they may in certain cases become unprivileged belligerents. This would mean that they would not be entitled to the status of prisoners of war upon their capture.); Richard R. Baxter, So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323 (1951); LIEBER CODE art. 49 (describing who is exposed to the inconveniences as well as entitled to the privileges of a prisoner of war). 40 See, e.g., JAMES M. SPAIGHT, AIRCRAFT IN WAR 51 (1914) (referring to that outlaw of war lawthe unqualified belligerent); HAGUE IV REG. arts. 1-3 (describing who meets [t]he Qualifications of Belligerents). 41 See, e.g., AP I art. 43(2) (describing combatants as those who have the right to participate directly in hostilities.). 42 Refer to 4.5 (Armed Forces of a State). 43 Refer to 4.6 (Other Militia and Volunteer Corps). 44 Refer to 4.7 (Leve en Masse).

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Types of Unprivileged Belligerents. Unprivileged belligerents may generally be 4.3.4classified into two categories that may be distinguished from one another by the presence or absence of State authorization:

persons who have initially qualified as combatants (i.e., by falling into one of the three categories mentioned above), but who have acted so as to forfeit the privileges of combatant status by engaging in spying or sabotage;45 and

persons who never meet the qualifications to be entitled to the privileges of combatant status, but who have, by engaging in hostilities, incurred the corresponding liabilities of combatant status (i.e., forfeited one or more of the protections of civilian status).46

These two categories of unprivileged belligerents generally receive the same treatment.47 However, the distinction that the first category has State authorization, while the second category does not, may be important and create different legal results. For example, the combatant who spies regains the entitlement to the privileges of combatant status upon returning to friendly lines, but the private person who spies cannot regain a status to which the person was never entitled.48 Similarly, acts of unprivileged belligerency on the high seas may constitute piracy, a crime under international law, although similar acts by persons acting under State authority, even if they were not members of the armed forces, could not constitute piracy.49

4.4 RIGHTS, DUTIES, AND LIABILITIES OF COMBATANTS

Combatants have a special legal status, i.e., certain rights, duties, and liabilities. As discussed below, combatants may engage in hostilities and are liable to being made the object of attack by enemy combatants. Combatants must conduct their operations in accordance with the law of war. They have the right to POW status if they fall into the power of the enemy during international armed conflict. Combatants have legal immunity from domestic law for acts done under military authority and in accordance with the law of war.

Combatants Conduct of Hostilities. In general, combatants may engage in 4.4.1hostilities and may be made the object of attack by enemy combatants.50 However, combatants placed hors de combat must not be made the object of attack.51

Combatants must conduct their operations in accordance with the law of war. For example, combatants must take certain measures to distinguish themselves from the civilian population.52 Combatants also may not kill or wound the enemy by resort to perfidy.53 45 Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines). 46 Refer to 4.18 (Private Persons Who Engage in Hostilities). 47 Refer to 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents). 48 Refer to 4.17.5 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status). 49 Refer to 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War). 50 Refer to 5.8 (Combatants). 51 Refer to 5.10 (Persons Placed Hors de Combat). 52 Refer to 5.5.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).

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Combatants must only direct their attacks against military objectives.54 Combatants must take feasible precautions in conducting attacks to reduce the risk of harm to the civilian population.55 Chapter V addresses in detail the rules that combatants must follow in the conduct of hostilities.

Combatants POW Status During Detention. Combatants are liable to capture and 4.4.2detention by enemy combatants, but are entitled to POW status when they fall into the power of the enemy during international armed conflict. POWs, like all detained individuals, must be treated humanely.56 In addition, POWs are afforded a variety of privileges in detention in accordance with the GPW, such as camp canteens, advances of pay, and permission to wear their badges of rank, nationality, or decorations.57 POWs also have duties in detention, such as identifying themselves to their captors,58 and they are subject to the laws, regulations, and orders of the Detaining Power.59 Chapter IX addresses in detail the treatment of POWs and their duties.

In general, POWs shall be released and repatriated without delay after the cessation of active hostilities.60 However, seriously wounded, injured, or sick POWs should be returned before the end of hostilities.61 In addition, after the hostilities have ended, certain POWs may be held in connection with criminal proceedings.62

In general, combatants retain their right to POW status and treatment, even if they are alleged to have committed crimes before capture.63 For example, POWs are entitled to a variety of rights in relation to judicial proceedings against them.64 In addition, POWs serving disciplinary punishment shall continue to receive the benefits of the GPW, except insofar as these benefits are necessarily rendered inapplicable by the mere fact that the POW is confined.65

Combatants captured while engaged in spying or sabotage forfeit their entitlement to POW status.66 In cases of doubt as to whether a detainee is entitled to POW status, that person

53 Refer to 5.22 (Treachery or Perfidy Used to Kill or Wound). 54 Refer to 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks). 55 Refer to 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects). 56 Refer to 9.5 (Humane Treatment and Basic Protections for POWs). 57 Refer to 9.17 (Canteens for POWs); 9.18.3 (Advance of Pay); 9.22.4 (Rank and Age of POWs). 58 Refer to 9.8 (Interrogation of POWs). 59 Refer to 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the Detaining Power). 60 Refer to 9.37 (Release and Repatriation After Hostilities). 61 Refer to 9.36.1 (Direct Repatriation of Seriously Wounded, Injured, or Sick POWs). 62 Refer to 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense). 63 Refer to 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts). 64 Refer to 9.28 (Judicial Proceedings and Punishment). 65 Refer to 9.27.6.2 (Retention of the Benefits of the GPW While Undergoing Disciplinary Punishment). 66 Refer to 4.17.5 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status).

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should be afforded the protections of POW status until their status has been determined by a competent tribunal.67

Combatants - Legal Immunity From a Foreign States Domestic Law. International 4.4.3law affords combatants a special legal immunity from the domestic law of the enemy State for their actions done in accordance with the law of war.68 This legal immunity is sometimes called the combatants privilege or combatant immunity. This means that a combatants killing, wounding, or other warlike acts are not individual crimes or offenses,69 if they are done under military authority and are not prohibited by the law of war.70 Similarly, a combatants warlike acts done under military authority and in accordance with the law of war also do not create civil liability.71

Combatants lack legal immunity from an enemy States domestic law for acts that are prohibited by the law of war.72 Also, combatants lack legal immunity from an enemy States domestic law while engaging in spying or sabotage.73 Combatants, however, must receive a fair and regular trial before any punishment.74

67 Refer to 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined). 68 This legal immunity would also be applicable with respect to neutral States to the extent they sought to exercise jurisdiction over the conduct of belligerents. Traditionally, however, neutral States generally did not assert jurisdiction over conduct committed between belligerents. Refer to 18.21.1 (Jurisdiction Over War Crimes). 69 LIEBER CODE art. 57. See also Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting) (explaining that legitimate acts of warfare, however murderous, do not justify criminal conviction and that it is no crime to be a soldier.); WINTHROP, MILITARY LAW & PRECEDENTS 778 (The State is represented in active war by its contending army, and the laws of war justify the killing or disabling of members of the one army by those of the other in battle or hostile operations.); Arce v. State, 202 S.W. 951 (Texas Court of Criminal Appeals 1918) (reversing homicide conviction of Mexican soldiers prosecuted in connection with hostilities between the United States and Mexico). Consider AP I art. 43(2) (combatants have the right to participate directly in hostilities.). 70 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (acts done in time of war under the military authority of an enemy cannot involve criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war.); Daniel Webster, Department of State, Letter to John G. Crittenden, Attorney General, Mar. 15, 1841, reprinted in THE DIPLOMATIC AND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 134-35 (1848) (explaining [t]hat an individual forming part of a public force, and acting under the authority of his Government, is not to be held answerable, as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations). 71 See Freeland v. Williams, 131 U.S. 405, 416 (1889) (Ever since the case of Dow v. Johnson, 100 U.S. 158, the doctrine has been settled in the courts that in our late civil war, each party was entitled to the benefit of belligerent rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare, under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under such authority.); Dow v. Johnson, 100 U.S. 158, 165 (1879) (There would be something singularly absurd in permitting an officer or soldier of an invading army to be tried by his enemy, whose country it had invaded. The same reasons for his exemption from criminal prosecution apply to civil proceedings.). 72 See United States, et al. v. Gring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 223 (He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.). 73 Refer to 4.17.3 (Spying and Sabotage Forfeiture of the Privileges of Combatant Status). 74 Refer to 9.28.4 (Rights of Defense and Trial Procedure).

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4.4.3.1 Combatants - Legal Immunity and POW Status. The combatants privilege from liability under domestic law has been associated with POW status.75 In that vein, U.S. courts have inferred from provisions of the GPW the combatants privilege against being prosecuted by capturing States.76 However, the legal immunity that combatants may be afforded is not the same as POW status. For example, a combatants conduct may be protected by legal immunities even when that person is not in the power of the enemy and thus is not a POW. As another example of how POW status and legal immunity may differ, the GPW generally affords the same treatment to all classes of POWs identified in Article 4. However, not all the categories of POWs identified in Article 4 of the GPW, such as persons authorized to accompany the armed forces, receive the general license to commit belligerent acts that is afforded members of the armed forces.77

4.4.3.2 Combatants Legal Immunity and Sovereignty. In addition to being associated with humanitarian principles governing the treatment of POWs, the combatants privilege has also been viewed as an application of the immunity that international law affords States from each others jurisdiction.78 In this view, the act of the soldier who conforms to the law of war and does not engage in private acts of warfare is an act of state depriving the enemy

75 See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3451 (It is well-accepted that individuals who enjoy the status of prisoner of war are generally immune from prosecution for legitimate acts of war in international armed conflicts.); ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 305 (1976) (there has traditionally been a close relationship between the concept of prisoners of war and that of lawful combatants.); LIEBER CODE art. 56 (A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.). 76 See United States v. Lindh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (memorandum opinion) (interpreting articles 87 and 99 of GPW to make clear that a belligerent in a war cannot prosecute the soldiers of its foes for the soldiers lawful acts of war); United States v. Khadr, 717 F.Supp.2d. 1215, 1222 footnote 7 (USCMCR 2007) (same); United States v. Pineda, 2006 U.S. Dist. LEXIS 17509, 6-8 (D.D.C. Mar. 23, 2006) (D.D.C. 2006) (same). See also United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990) (As is evident from its text and construed as a whole, the essential purpose of the Geneva Convention Relative to the Treatment of Prisoners of War is to protect prisoners of war from prosecution for conduct which is customary in armed conflict.). 77 ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 305 (1976) (The relationship between the concepts of lawful combatants and prisoners of war has been said to arise from the fact that lawful combatants are always entitled to prisoner-of-war status, while the reverse is not necessarily true, as there are categories of persons entitled to the status of prisoners of war who as civilians enjoy no general license to commit belligerent acts.). 78 Cf. United States v. Thierichens, 243 F. 419, 420 (E.D. Pa. 1917) (The well-settled rule that, under the comity existing between nations, the public armed ship of a friendly nation, acting under the immediate and direct command of the sovereign power, is not to be interfered with by the courts of a foreign state, is based upon the principle that, if the courts did attempt to assume jurisdiction over such vessel, it would require the sovereign of the nation to which the vessel belongs to be impleaded in the court from which the process issued, and, by common consent of nations, such situations could not arise without interference with the power and dignity of the foreign sovereign. Therefore the courts will not assume jurisdiction over such vessel or its officers, while acting as such, but leave controversies arising out of the acts of the vessel, and its officers, while acting in their official character, for settlement through diplomatic channels.).

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state of jurisdiction.79 This view of the combatants privilege requires that combatants act under the commission of a belligerent State.80 This view also reflects the principle that only States may authorize the resort to force.81

Nationality and Combatant Status. 4.4.4

4.4.4.1 Nationals of Neutral States in Enemy Forces. Members of enemy armed forces may include nationals of neutral or non-belligerent States. For example, the U.S. armed forces include many foreign nationals, and the United States could be engaged in hostilities when those foreign nationals home States are not. Nationals of a neutral or non-belligerent State who are members of the armed forces of a belligerent State should be treated like other members of that States armed forces.82 For example, such nationals are entitled to POW status if they fall into the power of the enemy during international armed conflict.83

4.4.4.2 Nationals of a State Who Join Enemy Forces. The special privileges that international law affords combatants generally do not apply between a national and his or her State of nationality.84 For example, provisions of the GPW assume that POWs are not nationals of the Detaining Power.85 Thus, international law does not prevent a State from punishing its

79 Richard Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 382, 385 (1951). See also Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31 CALIFORNIA LAW REVIEW 530, 549 (1943) (That a State violates international law if it punishes as a criminal, according to its national law, a member of the armed forces of the enemy for an act of legitimate warfare, can be explained only by the fact that the State by so doing makes an individual responsible for an act of another State. According to international law, the act in question must be imputed to the enemy State and not to the individual who in the service of his State has performed the act. It cannot be considered as a crime of the individual because it must not be considered as his act at all.); LIEBER CODE art. 41 (All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field.). 80 See Wharton, Com. Am. Law, 221, VII MOORES DIGEST 175 (It is necessary in order to place the members of an army under the protection of the law of nations, that it should be commissioned by a state. Hence, all civilized nations have agreed in the position that war to be a defence to an indictment for homicide or other wrong, must be conducted by a belligerent state, and that it can not avail voluntary combatants not acting under the commission of a belligerent.). 81 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose). 82 Refer to 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State). 83 LEVIE, POWS 74-75 (Normally, the nationality of the individual falling within one of the categories enumerated in Article 4 is that of the belligerent Power for which he is fighting. However, he may have the nationality of a neutral, or of an ally of the belligerent in whose armed forces he is serving at the time that he falls into the power of the enemy--or even of the adverse Party, or one of its allies. Does this affect his entitlement to prisoner-of-war status? Apparently there is no dispute with respect to the entitlement to prisoner-of-war status of an individual who is a national of a neutral State or of a State which is an ally of the belligerent in whose armed forces he is serving.). 84 Compare 10.3.3.1 (A States Own Nationals). 85 See, e.g., GPW art. 87 (When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will.). Refer to 9.26.6 (Prohibited Penalties); 9.28.6 (Death Sentences).

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nationals whom it may capture among the ranks of enemy forces.86 This rule is significant in non-international armed conflicts in which a State is fighting a rebel group composed of its own citizens.87

Although, as a matter of international law, nationals may not assert the privileges of combatant status against their own State, they may be subject to the liabilities of combatant status in relation to their own State under that States domestic law. For example, under U.S. law, U.S. nationals who join enemy forces have been subject to the liabilities of combatant status, such as potentially being made the object of attack or detained.88

4.4.4.3 Nationals of Allied or Co-Belligerent States. Nationals of an allied or co-belligerent State who are serving with enemy forces are in a position that is similar to the position of nationals of a State who are serving with enemy forces. If the nationals of an allied or co-belligerent State who are serving with enemy forces are captured by a State, they may be transferred to their State of nationality (i.e., the co-belligerent or allied State), which is not required to afford them POW status.89 However, U.S. practice as the Detaining Power in this situation has been to afford POW treatment to such individuals if they claim such protection.90

86 See Public Prosecutor v. Oie Hee Koi and Associated Appeals (UK Privy Council, Dec. 4 1967), LEVIE, DOCUMENTS ON POWS 737, 741 (quoting LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW) (The privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. The same applies to traitorous subjects of a belligerent who, without having been members of his armed forces, fight in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished. This edition was published in 1951 after Aug. 12, 1949, the date of the Geneva Conventions, and in their lordships opinion correctly states the relevant law.). 87 Refer to 17.12 (Use of Captured or Surrendered Enemy Personnel in NIAC). 88 See, e.g., Hamdi v. Rumsfeld 542 U.S. 507, 519 (2004) (plurality) (There is no bar to this Nations holding one of its own citizens as an enemy combatant.); Ex parte Quirin, 317 U.S. 1, 37 (1942) (Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946) (rejecting the argument of petitioner, an Italian army draftee, that he could not be subject to the liabilities of combatant status and detained because he was a U.S. citizen). 89 For example, DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The United States Army, 1776-1945, 198 (Jun. 24, 1955) (During the [Second World] war many soldiers of a state of origin other than Germany were found in German uniform among German prisoners of war. Therefore when Allied forces captured these prisoners they segregated them by nationalities. The individual PW was then interrogated by representatives of his countrys government in exile. If acceptable to that government and if he was willing, the PW was sent to Great Britain for service in an army unit of his national government. If the PW was rejected, he was treated in all respects as a German prisoner of war.). 90For example, Announcement Concerning Soviet Allegations on Allied Prisoners of War, May 3, 1945, 12 DEPARTMENT OF STATE BULLETIN 864 (May 6, 1945) (In as much as the American Government has always insisted that all wearers of the American uniform, whether American citizens or not, are, as American soldiers, entitled to full protection of the [1929] Geneva convention and has so informed the enemy, these German prisoners of war of apparent Soviet nationality claiming such protection are being held as German prisoners of war in order to protect American soldiers in enemy hands.).

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4.5 ARMED FORCES OF A STATE

Members of the armed forces of a State, including members of all groups that are part of the armed forces of a State, but excluding certain medical and religious personnel,91 receive combatant status (i.e., its rights, duties, and liabilities) by virtue of that membership.92 This section addresses various classes of persons within the armed forces of a State.

Components of Armed Forces. The armed forces of a State may include a variety 4.5.1of components, such as militia or volunteer corps that form part of those armed forces.93

The U.S. armed forces include members of the active duty military, the reserve forces, and the National Guard. U.S. armed forces also include the Coast Guard, which normally operates under the Department of Homeland Security.94

The U.S. armed forces may also include the Commissioned Corps of the U.S. Public Health Service, which normally operates under the Department of Health and Human Services.95 Similarly, members of the Commissioned Corps of the National Oceanic and Atmospheric Administration, which normally operates under the Department of Commerce, may also become part of the U.S. armed forces.96 Members of these and other organizations assigned to, and serving with, the U.S. armed forces may be subject to the Uniform Code of Military Justice.97

91 Refer to 4.9 (Military Medical and Religious Personnel). 92 See GPW art. 4A(1) (defining prisoners of war, in the sense of the present Convention, to include (1) [m]embers of the armed forces of a Party to the conflict who have fallen into the power of the enemy); HAGUE IV REG. art. 1 (The laws, rights, and duties of war apply to armies); LIEBER CODE art. 57 (So soon as a man is armed by a sovereign government and takes the soldiers oath of fidelity, he is a belligerent;). Cf. sources cited in footnote 150 in 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State). 93 See GPW art. 4A(1) (defining prisoners of war, in the sense of the present Convention, to include members of militias or volunteer corps forming part of such armed forces who have fallen into the power of the enemy); HAGUE IV REG. art. 1 (In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination army.). 94 See 10 U.S.C. 101(a)(4) (explaining that, for the purposes of U.S. domestic law, the term armed forces means the Army, Navy, Air Force, Marine Corps, and Coast Guard.); 14 U.S.C. 1 (The Coast Guard as established January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times. The Coast Guard shall be a service in the Department of Homeland Security, except when operating as a service in the Navy.). 95 42 U.S.C. 217 (In time of war, or of emergency involving the national defense proclaimed by the President, he may by Executive order declare the commissioned corps of the [Public Health] Service to be a military service.). 96 33 U.S.C. 3061 (The President may, whenever in the judgment of the President a sufficient national emergency exists, transfer to the service and jurisdiction of a military department such vessels, equipment, stations, and officers of the Administration as the President considers to be in the best interest of the country. An officer of the Administration transferred under this section, shall, while under the jurisdiction of a military department, have proper military status and shall be subject to the laws, regulations, and orders for the government of the Army, Navy, or Air Force, as the case may be, insofar as the same may be applicable to persons whose retention permanently in the military service of the United States is not contemplated by law.). 97 10 U.S.C. 802(a)(8) (Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces, are subject to the Uniform Code of Military Justice).

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The U.S. armed forces may also include the volunteer auxiliary of the Air Force when the services of the Civil Air Patrol are used in certain missions.98

4.5.1.1 Reserve Armed Forces. Although domestic law sometimes differentiates between the reserve and active components of the armed forces for the purpose of entitlement to benefits and other matters, international law treats members of the reserve forces that are part of the armed forces of a State the same as other members of the armed forces.

In the United States, reserve armed forces include the reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army National Guard of the United States and the Air National Guard of the United States.99

Classes of Persons Within the Armed Forces. 4.5.2

4.5.2.1 Special Operations Forces. Special operations forces may be described as military forces specially organized, trained, and equipped to achieve military, political, economic, and psychological objectives by unconventional military means in hostile, denied, or politically sensitive areas.100 As members of the armed forces, special operations forces have the same rights, duties, and liabilities as other members of the armed forces.101

Nonetheless, in the past, some States have illegitimately questioned whether special operations forces are entitled to the privileges of combatant status. For example, during World War II, Hitler directed that German forces summarily execute captured Allied special operations forces.102 Post-World War II war crimes tribunals found that this order was not a legitimate

98 See 10 U.S.C. 9442(b)(1) (The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfill the noncombat programs and missions of the Department of the Air Force.). 99 10 U.S.C. 10101 (The reserve components of the armed forces are: (1) The Army National Guard of the United States. (2) The Army Reserve. (3) The Navy Reserve. (4) The Marine Corps Reserve. (5) The Air National Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.). 100 JOINT PUBLICATION 3-05, Special Operations, ix (Jul. 16, 2014) (Special operations require unique modes of employment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, or politically and/or diplomatically sensitive environments, and are characterized by one or more of the following: time-sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greater requirements for regional orientation and cultural expertise, and a higher degree of risk. Special operations provide joint force commanders (JFCs) and chiefs of mission with discrete, precise, and scalable options that can be synchronized with activities of other interagency partners to achieve United States Government (USG) objectives.). 101 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants). 102 Adolf Hitler, Commando Order, reprinted in Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 20-21 (British Military Court, Brunswick, Jul. 29-Aug. 2, 1946); also reprinted in United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 525-27; also reprinted in The Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 33-34 (U.S. Military Commission, Rome, Oct. 8-12, 1945).

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reprisal, violated the prohibition against executions without a fair trial, and improperly denied POW status to soldiers wearing a uniform behind enemy lines.103

Special operations forces personnel, like other members of the armed forces, remain entitled to the privileges of combatant status, unless they temporarily forfeit such privileges by engaging in spying or sabotage.104 In some cases, military personnel who do not wear the standard uniform of their armed forces may nonetheless remain entitled to the privileges of combatant status because the wearing of such uniforms does not constitute the element of acting clandestinely or under false pretenses.105 For example, special operations forces have sometimes dressed like friendly forces.106 Special operations forces personnel remain entitled to the privileges of combatant status even when operating detached from the main body of forces behind enemy lines.107

4.5.2.2 Members Trained as Medical Personnel, but Not Attached to the Medical Service. Members of the armed forces might have medical training but not be designated as military medical personnel. For example, before joining the armed forces, a person might have been trained as a nurse or physician, and after joining the armed forces might not be designated as part of the medical corps.

Because such personnel have not been designated as military medical personnel, they are are combatants, like other members of the armed forces.108 However, if they fall into the power of the enemy during international armed conflict, such personnel may be required to tend to fellow POWs, in light of their previous training. In particular, POWs who, though not attached to the medical service of their armed forces, are physicians, surgeons, dentists, nurses, or medical orderlies may be required by the Detaining Power to exercise their medical functions in the 103 See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court, Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that Hitlers commando order was clearly illegal because it provided that there should be no military courts, for even a war traitor is entitled to a trial, and because the commando order was to apply to troops engaged on commando operations whether in uniform or not); The Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 27-33 (U.S. Military Commission, Rome, Oct. 8-12, 1945) (conviction of a German General for the murder of 15 U.S. Army personnel and rejection of his defense that the commando order was a valid and applicable superior order); Trial of Karl Adam Golkel and Thirteen Others, V U.N. LAW REPORTS 45-53 (British Military Court, Wuppertal, Germany, May 15-21, 1946) (trial of German soldiers for killing eight members of the British Special Air Service); United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 527 (This order was criminal on its face. It simply directed the slaughter of these sabotage troops.). 104 Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines). 105 Refer to 4.17.2.1 (Acting Clandestinely or Under False Pretenses). 106 Refer to 5.25.2.1 (Mimicking Other Friendly Forces). 107 See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court, Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that [i]t is not possible to say that troops who engage in acts of sabotage behind the enemy lines are bandits, as Hitler declared them. They carry out a legitimate act of war, provided the objective relates directly to the war effort and provided they carry it out in uniform.); LIEBER CODE art. 81 (Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.). 108 Refer to 4.9.2.2 (Designated by Their Armed Forces).

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interests of POWs dependent on the same Power.109 In that case, they shall continue to be POWs, but shall receive the same treatment as corresponding medical personnel retained by the Detaining Power.110 They shall be exempted from any other work under Article 49 of the GPW.111

4.5.2.3 Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces. Members of the armed forces might be ministers of religion, but might not be designated as military religious personnel.112 Because such personnel have not been designated as military religious personnel, they are combatants, like other members of the armed forces.113 However, if they fall into the power of the enemy during international armed conflict, such personnel may minister to fellow POWs. In particular, POWs who are ministers of religion, without having officiated as chaplains to their own forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community.114 For this purpose, they shall receive the same treatment as chaplains retained by the Detaining Power.115 They shall not be obliged to do any other work.116

4.5.2.4 Draftees. Some States require military service for categories of their nationals. The United States employs all-volunteer armed forces, although it has drafted its nationals into military service in prior conflicts.

Under international law, a draftee, i.e., a person who has been compelled to join a States armed forces, is to be treated the same as other members of the armed forces.117

4.5.2.5 Deserters. A deserter from the armed forces of a belligerent who falls into the power of the enemy in international armed conflict is a POW.118 Similarly, a deserter who is interned by a neutral State would also be treated as a POW.119 The deserters relationship with 109 GPW art. 32 (Prisoners of war who, though not attached to the medical service of their armed forces, are physicians, surgeons, dentists, nurses or medical orderlies, may be required by the Detaining Power to exercise their medical functions in the interests of prisoners of war dependent on the same Power.). 110 GPW art. 32 (In that case they shall continue to be prisoners of war, but shall receive the same treatment as corresponding medical personnel retained by the Detaining Power.). 111 GPW art. 32 (They shall be exempted from any other work under Article 49.). 112 Refer to 4.9.2 (Requirements for Military Medical and Religious Status). 113 Refer to 4.9.2.2 (Designated by Their Armed Forces). 114 GPW art. 36 (Prisoners of war who are ministers of religion, without having officiated as chaplains to their own forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community.). 115 GPW art. 36 (For this purpose, they shall receive the same treatment as the chaplains retained by the Detaining Power.). 116 GPW art. 36 (They shall not be obliged to do any other work.). 117 See 1958 UK MANUAL 89(i) (noting that [t]he members, male and female, of the land, sea and air forces are entitled to recognition as belligerent forces whether they have joined voluntarily or have been compelled to do so by their own law). 118 See GREENSPAN, MODERN LAW OF LAND WARFARE 99 (Deserters from the enemy do not thereby lose their right to be treated as prisoners of war if they fall into the hands of the opposing side.). 119 Refer to 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

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his or her armed forces is a question of that States domestic law and not international law. States generally forbid members of their armed forces from desertion and generally regard members of the armed forces who desert as continuing to be members of their armed forces.

Deserters who are subsequently captured by their own armed forces are not POWs because they are not in the power of the enemy and because the privileges of combatant status are generally understood not to apply, as a matter of international law, between nationals and their State of nationality.120

4.5.2.6 Defectors. Defectors are persons from one sides armed forces who voluntarily join the armed forces of the opposing side. They are generally not regarded as POWs while serving in their new armed force.121

Defectors serving in the forces of the enemy who are captured by the State to which they originally owed an allegiance generally would not be entitled to POW status because the privileges of combatant status are generally understood not to apply, as a matter of international law, between nationals and their State of nationality.122

States may not compel POWs, retained personnel, or protected persons in their power to defect and serve in their armed forces.123

Regular Armed Forces Who Profess Allegiance to a Government or an Authority 4.5.3Not Recognized by the Detaining Power. During international armed conflict, members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power are treated as members of the armed forces of a State.124 Under Article 4A(3) of the GPW, they receive POW status, and they should also receive the rights, duties, and liabilities of combatants.125

Article 4A(3) of the GPW was developed to address situations like those that had occurred during World War II, when members of a military force continued fighting after their State had been occupied.126 For example, military forces might continue to fight for a

120 Refer to 4.4.4 (Nationality and Combatant Status). 121 Refer to 9.3.4.1 (Having Fallen). 122 Refer to 4.4.4.2 (Nationals of a State Who Join Enemy Forces). 123 Refer to 9.19.2.3 (Labor Assignments That May Be Compelled); 10.7.3 (Compulsory Work for Protected Persons in a Belligerents Home Territory); 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Powers Armed Forces). 124 GPW art. 4A(3) (defining prisoners of war, in the sense of the present Convention, to include [m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power who have fallen into the power of the enemy). 125 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants). 126 See INTERNATIONAL COMMITTEE OF THE RED CROSS, Report on the Work of the Conference of Government Exports for the Study of the Convention for the Protection of War Victims, 106 (Geneva, Apr. 14-26, 1947) (In its report, the ICRC stressed that certain States [during World War II] had denied the status of belligerents to combatant units subject to a Government or authority which these States did not recognise; this despite the fact that these units (e.g. the French forces constituted under General de Gaulle) fulfilled all the conditions required for the granting of

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government-in-exile or for a government that had ceased to exist.127 Such a government would provide the right authority for its regular armed forces to participate in the ongoing war and to receive POW status upon capture by the enemy.128 Members of those forces were sometimes denied POW status by an enemy State, even though other States recognized the group to which they belonged as a co-belligerent force.129

Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State. 4.5.4Under Article 4B(1) of the GPW, persons belonging, or having belonged, to the armed forces of an occupied State should be treated as POWs if, while hostilities are continuing outside occupied territory, the Occupying Power considers it necessary, by reason of their allegiance to the armed forces, to intern them.130

Article 4B(1) of the GPW seeks to address the proper status of an army demobilized by the Occupying Power while a portion of those same armed forces continue the struggle. When the forces are demobilized, they are treated as civilians, but when recalled for internment based on their prior service, they are treated as POWs.131 In particular, States developed this provision to address Germanys practice during World War II of arresting demobilized military personnel from occupied States.132 These personnel were often interned and sought to escape to join the ongoing fighting. This provision was promulgated to ensure that individuals in similar

PW status. The Commission approved the ICRCs proposal that these armed forces should enjoy PW status, irrespective of the Government or authority under whose orders they might claim to be.). 127 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 415 (Mr. Lamarle (France) realized that cases might arise where combatants claiming allegiance to an authority which was not recognized by the Detaining Power might be deprived of the benefit of the Convention; but he thought the word authority afforded sufficient safeguards to such combatants. After an exchange of views on the subject, the Committee agreed that the word authority afforded sufficient safeguards to combatants claiming allegiance to Governments which had ceased to exist.). 128 Refer to 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose). 129 Refer to 3.3.3.3 (Recognition of Friendly Armed Groups as Lawful Belligerents). 130 GPW art. 4B(1) ((1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.). 131 GPW COMMENTARY 69 (In fact, as one delegate to the Conference pointed out, the question relates to the proper status of an army demobilized by the Occupying Power, while a portion of those same armed forces continue the struggle. It is logical to treat its members as civilians until such time as they are recalled in order to be interned; but from that moment, it is equally logical to treat them as prisoners of war.). 132 See GPW COMMENTARY 68 (During the Second World War, the Occupying Power, for security reasons, frequently arrested demobilized military personnel in occupied territory, especially officers. These men were granted prisoner-of-war status but usually only after repeated representations by the International Committee of the Red Cross and the Governments concerned. In the report which the International Committee prepared for the Government Experts, it therefore proposed that the entitlement of such persons to prisoner-of-war status should be explicitly mentioned and the Conference supported this suggestion.). For further historical background see LEVIE, POWS 66-67, II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 431-32, and the note appended to In re Siebers, Special Court of Cassation, Feb. 20, 1950, The Hague, in 1950 INTERNATIONAL LAW REPORTS, 399-400.

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circumstances would receive POW treatment if they were interned. For example, the rules for the parole of POWs would apply to them.133 Similarly, the rules relating to POW escape would also apply to them.134 So, a demobilized person who disobeyed an internment order and attempted to escape to rejoin his or her armed force would, like a POW, be subject, at most, to disciplinary punishment in respect of the act of escape.135

Persons belonging, or having belonged, to the armed forces of an occupied State would only be entitled to receive POW treatment while an international armed conflict continues.136 For example, this provision would not apply to a situation like the occupation of Japan after World War II because all hostilities had ended.137

4.6 OTHER MILITIA AND VOLUNTEER CORPS

Under certain conditions, members of militia and volunteer corps that are not part of the armed forces of a State qualify as combatants and receive the rights, duties, and liabilities of combatant status.138 More specifically, Article 4(A)(2) of the GPW defines prisoners of war to include:

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

133 Refer to 9.11.2 (Parole of POWs). 134 Refer to 9.25 (POW Escapes). 135 Refer to 9.25.2.2 (Only Disciplinary Punishments in Respect of an Act of Escape). 136 See LEVIE, POWS 67-68 (It is important to bear in mind that the foregoing provisions explicitly contemplate that the government of the unoccupied part of the territory of the State the members of whose armed forces are in question, or that States allies if it has been completely occupied, are continuing the hostilities. The mere existence of a government-in-exile after the complete cessation of hostilities would not suffice to make the provision applicable. In other words, this provision was not intended to apply to the situation which arises when the capitulation of a State is followed by the complete termination of armed hostilities.). 137 See LEVIE, POWS 68 and footnote 261 ([T]his provision was not intended to apply to the situation which arises when the capitulation of a State is followed by the complete termination of armed hostilities and would, therefore, not apply in a situation such as that which existed upon the capitulation of Japan in 1945.). 138 Refer to 4.4 (Rights, Duties, and Liabilities of Combatants).

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(d) that of conducting their operations in accordance with the laws and customs of war.139

Under these conditions, which are discussed below, members of these armed groups may operate as combatants in or outside their own territory, even if this territory is occupied. By contrast, a leve en masse may only be formed on the approach of the enemy to non-occupied territory.140

GPW 4A(2) Conditions in General. The conditions set forth in Article 4A(2) of the 4.6.1GPW were derived from conditions found in the Regulations annexed to the 1899 Hague II and the 1907 Hague IV.141 These conditions reflect the attributes common to regular armed forces of a State.142 By seeking to ensure that participants in hostilities are sufficiently disciplined, law-abiding, and distinguishable from the civilian population, these conditions help protect the civilian population from the hardships of war. In addition, these conditions contribute to the military effectiveness of the force that satisfies the conditions.143

These conditions may be understood to reflect a burdens-benefits principle, i.e., the receipt of certain benefits in the law of war (e.g., privileges of combatant status) requires the assumption of certain obligations.144

4.6.1.1 GPW 4A(2) Conditions Required on a Group Basis. The armed group, as a whole, must fulfill these conditions for its members to be entitled to the privileges of combatant status. For example, if a member of an armed group met these requirements, but the armed group did not, that member would not be entitled to the privileges of combatant status

139 GPW art. 4(A)(2). See also HAGUE IV REG. art. 1 (The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: -- 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.); 1899 HAGUE II REG. art. 1 (The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.). 140 Refer to 4.7.1.3 (Approach of the Enemy to Non-Occupied Territory). 141 See GPW COMMENTARY 49 ([T]here was unanimous agreement [at the 1949 Diplomatic Conference] that the categories of persons to whom the Convention is applicable must be defined, in harmony with the Hague Regulations.). 142 See GPW COMMENTARY 58 (explaining that an organization satisfying the conditions of GPW art. 4A(2) must have the principal characteristics generally found in armed forces throughout the world, particularly in regard to discipline, hierarchy, responsibility and honour.). 143 JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 549 (General den Beer Poortugael, while fully endorsing the considerations set forth by the PRESIDENT and his Excellency Mr. BEERNAERT, wishes to add a few words. But from a military standpoint also it must be recognized that it is to the benefit of the populations to impose on them the conditions contained in Articles 9 and 10 [predecessors to GPW art. 4A(2) and 4A(6) and], which they must satisfy if they wish to take up arms. For it is an undeniable fact that to lead undisciplined and unorganized troops into the fire is to lead them to butchery.). 144 Refer to 3.6.3.2 (Benefits-Burdens Principle in Law of War Rules).

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because the armed group failed to satisfy the conditions.145 Similarly, isolated departures from a condition by a member of the armed group (e.g., a failure to comply with the conditions by a member of the armed group that was not directed by the armed groups leader) would not prevent the armed group from satisfying these conditions.

4.6.1.2 AP I and the GPW 4A(2) Conditions. AP I changed, for its Parties, the conditions under which armed groups that are not part of a States armed forces may qualify for combatant status.146 The United States has objected to the way these changes relaxed the requirements for obtaining the privileges of combatant status, and did not ratify AP I, in large part, because of them.147 A chief concern has been the extent to which these changes would undermine the protection of the civilian population.148 The United States has expressed the view that it would not be appropriate to treat this provision of AP I as customary international law.149

145 See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OF INTERNATIONAL LAW 173, 197 (1971) (the fate of the individual irregular is essentially linked with that of the group in which he operates. If the groups members, as a majority, always meet the legal conditions, the individual will answer only for his own misdoings, and then as a prisoner of war who had the right to participate in the combat. If, however, the individual were punctilious in a group in which the majority did not observe the conditions on any one occasion, he would not acquire combatant status or prisoner-of-war status upon capture, and will answer in law as an individual who participated in combat with no legal right to do so, i.e. answerable in municipal law or occupation law, or the law of war.). 146 See AP I, arts. 1(4), 43, 44. 147 See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV (Another provision [of AP I] would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.). 148 See, e.g., John B. Bellinger, III, Lawyers and Wars: A Symposium in Honor of Edward R. Cummings, Sept. 30, 2005, 2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 953, 955 (More problematic from the lawyers perspectiveor at least this lawyers perspectiveis how law deals with the kind of situation where a would-be terrorist seeks to cloak his actions in the garb of legitimate combatant. This second factor working against civilian protection is fueled in part by Article 44 of Additional Protocol I, which suggests that combatants do not need to distinguish themselves from the civilian population except prior to and during an attack. To be fair, there is no doubt that a terrorist would not meet the combatancy definition of any instrument of international humanitarian law. But the very fact that Additional Protocol I allows greater flexibility in distinction undermines this fundamental protection. The principle of distinction, among the foundational principles of humanitarian law, exists for the purposes of civilian protection, to ensure that fighters can identify the combatant from the bystander. Article 44, pressed so strongly for largely political reasons in the 1970s, undermines it. And as a result, one has to lament that the process of negotiating international humanitarian law instruments has not always inured to the civilian populations benefit.). 149 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (Article 44 grants combatant status to irregular forces in certain circumstances even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the existing laws of war. This was not acceptable as a new norm of international law. It clearly does not reflect customary law. While the U.S. is of the view that certain provisions in Protocol I reflect customary international law (see, e.g., Treaty Doc. 100-2, supra, at X), the provisions on wars of national liberation and combatant and prisoner-of-war status are definitely not in this category. Accordingly, it is the view of the United States that it would be inappropriate to treat these provisions as part of customary international law under any circumstances.).

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4.6.1.3 Application of GPW 4A(2) Conditions to the Armed Forces of a State. The text of the GPW does not expressly apply the conditions in Article 4A(2) of the GPW to the armed forces of a State.150 Thus, under the GPW, members of the armed forces of a State receive combatant status (including its privileges and liabilities) by virtue of their membership in the armed forces of a State.151 Nonetheless, the GPW 4A(2) conditions were intended to reflect attributes of States armed forces.152 If an armed force of a State systematically failed to distinguish itself from the civilian population and to conduct its operations in accordance with the law of war, its members should not expect to receive the privileges afforded lawful combatants.153 Similarly, members of the armed forces engaged in spying or sabotage forfeit their entitlement to the privileges of combatant status if captured while engaged in those activities.154

Belonging to a Party to the Conflict. The armed group must belong to a party to the 4.6.2conflict.155 The requirement of belonging to a party establishes that the armed group fulfills a jus ad bellum requirement of right authority, i.e., it is acting on the authority of a State.156 This

150 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 465-66 (General SLAVIN (Union of Soviet Socialist Republics) said that according to the first paragraph, sub-paragraph I, of the working text it would appear that members of the Armed forces would have to fulfil the four traditional requirements mentioned in (a), (b), (c) and (d) in order to obtain prisoner of war status, which was contrary to the Hague Regulations (Article I of the Regulations concerning the Laws and Customs of War, 18 October 1907). General DEVIJVER (Belgium) pointed out that the above reproduced working text had been drafted with due regard to the Hague Regulations, and the first paragraph, sub-paragraph (I), of the working text carefully specified that only members of militia or volunteer corps should fulfil all four conditions.). Cf. In re Lewinski (called von Manstein) Case, reprinted in ANNUAL DIGEST AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 509, 515-16 (H. Lauterpacht,